I'm adding GetReligion to the blogroll today; it's a blog about press coverage of religious issues. The current entry is about a press report on U.S. Latina conversions to Islam, and links to other commentary by Muslim women on hijab and women's rights under Islam.
From normblog: A new opinion poll showing apparently stronger support for secular democracy in general but weaker support for gender equality in particular than the poll I quoted earlier. Goes to show how much it matters which questions you’re asking, probably. And also, how much cultural attitudes towards women don’t map as completely to preferences about the role of religion in the state as you might think (see the link to the charts showing attitudes towards gender issues broken down by political preference on the page describing the new poll there). Secularists certainly rank lower than Islamic government supporters in opposing gender mixing in universities, for example, but 40-48% is still pretty high.
I encountered the claim that Muhammad was a pedophile (or "pedophile rapist" to be precise) again the other day in comments to a blog, and while it never seems quite worthwhile to answer this in blog comments, since the issue of Aisha’s age at marriage is complicated enough to take a bit of doing to discuss in full, and the person raising the issue rarely seems interested in hearing contradictory evidence anyway, I thought I would just do an entry here that I could link back to the next time the temptation to respond arises.
The Wikipedia article on Aisha has a good summary of the conflicting traditions and histories about Aisha’s age at marriage to Muhammad, and also of the difficulties resolution of this controversy pose to Islamic theological method. Another critic of the story that Aisha was married at the age of nine goes further and attacks the credibility of the narrator of the main hadith in question (the most important ones are attributed to Aisha, but hadith were preserved only as an oral tradition for about 170 years; M. Amir Ali is challenging the credibility of the transmitter of traditions attributed to Aisha and others, which were in turn collected and authenticated by al-Bukhari et al), finding also a few more hadith in addition to the historical sources cited in the Wikipedia article that seem to conflict with the marriage at nine story.
So that’s about as clear as mud. Whatever the truth of the matter may have been, the story clearly has been garbled in the transmission one way or the other. Why has 9 prevailed over the more customary marriage age of 13 or post-puberty for Arabs, which some sources also support as the marriage age for Aisha, in Muslim historiography? I think a partial answer may be found in D.A. Spellberg’s Politics, Gender, and the Islamic Past: The Legacy of A’isha bint Abi Bakr.
Spellberg relates two lists of attributes supposedly recited by Aisha herself in the works of medieval Muslim historian Ibn Sa’d. They are both related in the first person; the first is introduced with the words: I was preferred above the [other] wives of the Prophet by ten [attributes]:
1. He [Muhammad] married no other wife as a virgin except me.
2. He didn’t marry anyone else whose mother and father were both emigrants.
3. Allah sent down my innocence from heaven.
4. Gabriel brought him [Muhammad] my likeness in silk from heaven saying, "Marry her for she is your wife."
5. He and I used to wash from a single vessel and he didn’t do that with any of his wives except me.
6. He used to pray when I was in his presence. He did that with none of his wives except me.
7. He received revelation while he was with me. This didn’t happen when he was with any of his other wives.
8. He [Muhammad] died in my arms.
9. He died on a night which had been turned over to me.
10. He was buried under my house.
1. The Prophet of Allah took me as his wife when I was a girl of seven.
2. The angel brought Muhammad my likeness in the palm of his hand.
3. He [Muhammad] consummated the marriage when I was nine.
4. I saw Gabriel and no other wife saw him except me.
5. I was the most beloved of his wives.
6. My father was the most beloved of his companions.
7. The Prophet of Allah fell ill in my house.
8. I nursed him.
9. Muhammad died and no one witnessed it except myself and the angels.
Four factors found in the two lists of Ibn Sa'd make specific mention of A'isha's marriage. In the first list, A'isha states that she was the only woman the Prophet married "as a virgin." (Ibn Sa'd, Tabaqat, 8:58, 63; ibn Hisham, Kitab sirat rasul Allah, v.1 pt.2: 1001). This obviously prized though fleeting physical asset allowed A'isha to remind her husband that all his other wives, as widows, had been physically intimate with other men. Reference to her unique virginity, narrated on A'isha's authority, caused the Prophet to smile (Ibn Sa'd, 8:80). A'isha's virginity, defined as a special attribute, emphasizes her sexuality as the Prophet's marital prize, a mark of distinction which supports male definition and control of female honor and chastity. Unlike the Prophet's daughter Fatima, whose designation in later medieval sources as al-Batul, "the virgin," will allow her transcend aspects of more mundane female biology, not in the conception of her children but in matters of menstruation and parturition, A'isha's virginity merits no honorary epithet, but remains part of her sensual legacy as the Prophet's spouse.The second list confirms the particulars of the marriage by explaining that A'isha was seven when she married the Prophet and nine when the union was consummated. A'isha's age is a major preoccupation in Ibn Sa'd where her marriage age varies between six and seven; nine seems constant as her age at the marriage's consummation. (Ibn Sa'd, 8: 58-62, where hadith concerning her age are repeated more than ten times. (Al-Bukhari, Sahih al-Bukhari, 4: 71.; Ibn Hanbal, Musnad, 6: 118. Both al-Bukhari and Ibn Hanbal maintain the ages as six and nine.) Only Ibn Hisham's biography of the Prophet mentions that A'isha may have been ten years old when the Prophet consummated the marriage (Ibn Hisham, v.1 pt.2: 1001). All of these specific references to the bride's age reinforce A'isha's pre-menarcheal status and, implicitly, her virginity. They also suggest the variability of A'isha's age in the historical record. (For disputed date of birth, see al-Tabari, Ta'rikh, 4: 2135 and its contradiction within the same chronicle, 4: 1262. For her death date at sixty-seven, not sixty-six, see Ibn Khallikan, Wafayat al-a'yan, 3: 16).
So firstly it seems that a pre-menarchal age was always attributed to Aisha in early sources; it is only where this indirectly trips up other methods of historical dating linked to Aisha that we see any real disagreement. Secondly, her young age and therefore indisputable virginity were seen by her biographers (and perhaps Aisha herself if we can trust the sources) as evidence of her specialness to the Prophet.
And why is the specialness of Aisha important in Muslim history? Spellberg notes that Ibn Sa’d and the other medieval historians she quotes were writing just around the time when the ongoing dispute among Muslims about the status of Ali had finally been formalized into a sectarian split between Sunni and Shi’ite Muslims. Muhammad had died leaving no male children who survived into adulthood. Community leaders chose Abu Bakr, Aisha’s father, as the first successor to Muhammad. Some members of the community thought that Ali, the husband of Fatima, Muhammad’s daughter, should have been chosen instead. However, Ali was passed over two more times, in favor of Umar and Uthmann. When Ali was finally chosen as the fourth caliph to succeed Muhammad, Aisha led part of the community into a battle to prevent his succession. The battle was a bloodbath, but more so for Aisha’s side, and Ali assumed the Caliphate (but was soon thereafter assassinated, and the Umayyad dynasty began its rule of the Ummah).
Aisha’s presumed special status is understood by Sunni Muslims as evidence for the legitimacy of Abu Bakr as Caliph, and therefore implicitly the whole chain of succession after him, since the subsequent decisions of the leaders of the community are implicitly validated by the legitimacy of the first one. And Aisha herself was deeply involved in these controversies, and may have exaggerated some aspects of her history in order to legitimate herself (according to a standard that "supports male definition and control of female honor and chastity" to be sure) following her instigation of a battle that nearly destroyed the Ummah.
Or maybe Aisha really was nine when she married Muhammad. In a discussion on the islamicfeminist community (which unfortunately has since been deleted, and was also where I found the links above) at LiveJournal, one commenter noted that it was probably time for Muslims to begin taking a more anthropological view of Muhammad and the original Muslim community, viewing them as products of a very different society from ours in the far past, instead of treating every single thing they did as exemplary, and falling into the "trap" of trying to justify every aspect of their history, good or bad. This is probably easier said than done, since so much Islamic theology and jurisprudence uses the details of the lives of the Prophet and the Companions as guides to law and ethics. But it would simplify more than a few things, too.
Further to my earlier post on the Iraqi Constitution: Actually, Article 44 (“All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don't run contrary to the principles and rules of this constitution”) was elimated in the final draft after all. For some reason I had thought that the only major change to the proposed Constitution was in the rule about how it could be amended, so I was working from my printout of the draft published in August in composing this entry. The full text of the draft that was actually voted on October 15th is here (What now appears as Article 44 is just the provision that was previously Article 45.) Looking over the updated draft, I don’t think anything else I highlighted has been changed.
Amnesty International’s statement deploring the change is here. (Actually, this is how the change came to my attention; I was looking something else up on their site). Their assessment is basically correct, I think. It wasn’t strongly worded enough in the original in my opinion, but obviously it was strong enough to be threatening to fundies; the deletion is a real loss.
I’ve added a new item to the “Readings” sidebar, ”Islamic Feminism and its Discontents: Toward a Resolution of the Debate” by Valentine M. Moghadem (from Signs, v.27 no.24, 2002). It’s largely a response to Feminism and Islamic Fundamentalism: The Limits of Postmodern Analysis by Haideh Moghissi (which I reviewed here). It’s a good and concise overview of scholarship in the field from a more sympathetic perspective to Islamic feminism than in Moghissi’s treatment (although it’s a bit harsh on Moghissi, whose position is I think more nuanced than Moghadem acknowledges here. Although Moghadem’s work was criticized in Moghissi’s book and it’s clear Moghadem felt pretty attacked by that, so there ya go.) It’s also well worth a read for the summary of what Islamic feminists have managed to accomplish within the Islamic Republic of Iran.
But above all, I love an academic paper that comes with its own punchline. Because in the end, Moghadem's “resolution” to the debate between Islamic and secularist feminists is basically that everyone just adopt her own Marxist-feminist perspective, which is that of course we should talk nice about Islamic feminism but still posit complete secularization of the state as the only effective route to women’s empowerment. Except still keep the Islamic injunction against usury as state law, we like that part since it’s anti-capitalist. Problem solved!
[I started this awhile ago and just got around to finishing it today. I haven't checked to see if we have a count yet from the voting yesterday. It would be pretty funny if it turned out I spilt this much verbiage on a non-Constitution, wouldn't it? Although as I understand it, the parts I'm writing about aren't really the main issues for those who oppose passage so might not change much in the event of a revision.]
Bearing the cautionary tale of the Iranian Constitutional Revolution of 1906 firmly in mind, (wherein A. Iranians created a secular constitutional monarchy; B. Conservative clerics managed to insert the implementation of Shari’a canon law anyway; C. The Shari’a provision was ignored in practice; D. Iranian women were screwed anyway, since members of parliament were still the same sexist bastards the day after the Revolution as they were the day before), here are my thoughts about what the draft Iraqi Constitution might mean for women. In other words, I am assuming for the purposes of this discussion that the draft Constitution both accurately reflects the collective intent of Iraqis and will actually be enforced more or less in good faith (as opposed to ignored by whatever group manages to seize power in the event, for example, that national security under rule of law deteriorates utterly or is never secured).
The full text of the proposed Constitution is here.
Article (1): The Republic of Iraq is an independent, sovereign nation, and the system of rule in it is a democratic, federal, representative (parliamentary) republic.
Article (2):
1st -- Islam is the official religion of the state and is a basic source of legislation:
(a) No law can be passed that contradicts the undisputed rules of Islam.
(b) No law can be passed that contradicts the principles of democracy.
(c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.
2nd -- This constitution guarantees the Islamic identity of the majority of the Iraqi people and the full religious rights for all individuals and the freedom of creed and religious practices.
The Constitution follows the preferred form as outlined in the Rand document (outlining a method for acknowledging the cultural and legal historical influence of Islam while preventing theocracy in a democratizing Muslim state--written in reference to the Afghan constitution, see link in side bar), identifying Islam as "a" rather than "the" basic source of legislation.
So what does "undisputed rules of Islam" mean? Taken literally according to the meaning in English, it would seem to authorize review of legislation only on the most broadly agreed-upon principles of Islam. There are 4 major orthodox schools of jurisprudence in Sunni Islam, and 2 major and many other minor schools of Shia jurisprudence. Very few specific legal issues in shari’a law are "undiputed" between these various legal traditions. In earlier translations of the draft, the locution "essential verities of Islamic law" appeared instead of "undisputed rules." Does this reflect a change in the language in the original, or the vagaries of translation? "Essential verities" could be interpreted as closer to what role democratic reformers want Islam to play in the state, a sort of general legal and cultural background recognizing Islamic beliefs about justice and morality rather than the adoption of some literalist version of Islamic law based inflexibly on one school or the other. Both locutions, in other words, appear to be intended to limit the influence of specific historical legal iterations of shari’a and subject secular legisation to review only against the broadest principles enshrined in shari’a. However, without knowing anything at all about what the original Arabic actually is and might mean in Iraqi or Islamic legal history, I find it difficult to know for sure what the precise wording of Article 2 1a means. It may simply be a formulaic reference to Islamic canon law for example. I had hoped that someone with the appropriate linguistic and legal expertise would have elaborated on this in some public forum or other by now, but unfortunately I haven't come across any such so far.
I'm even more at sea with Article (2) 2nd: I have no idea what it means in practice to "guarantee the Islamic identity of the majority" while also guaranteeing free exercise of religion for non-Muslims. My best guess is that this is meant as a kind of reassurance or substitute for the habitual requirement in most Muslim states that the head of state be a Muslim, which is not stipulated in this constitution. The notion of Muslim headship as a basic requirement for the legitimacy of any person or body seeking to rule over Muslims dates from the earliest years of Islamic civilization (see my brief summary here). It is striking that it is omitted here, and this omission can I think be interpreted as a very positive move towards realizing the kind of nonsectarianism and tolerance for diversity that is spoken of so forcefully in the preamble. Perhaps guaranteeing the Islamic identity of the people is meant as a gesture towards swapping out the Islamic character of the people for that of ruler as the basis of legitimacy? This would be consonant with the articulation of the people (as opposed to God) as the source of authority in the state:
Article (5): The law is sovereign, the people are the source of authority and its legitimacy, which they exercise through direct, secret ballot and its constitutional institutions.
And now is as good a time as any to begin addressing the frequent claim that this Constitution authorizes an "Islamist state." The Islamist position is that God is the only source of legitimacy in a state or its law. Current and former Islamist states have therefore put clergy in charge of all three branches of the state, the judicial, legislative, and executive. (The Islamic Republic of Iran accomplished this end through the creation of the Revolutionary Council, a clerical body which of course has no equivalent in the proposed Iraqi Constitution, and which was given oversight and control of every function of government; I'm not sure that the Taleban ever bothered to commit the details of its rule to paper, but my impression is the structure of government, such as it was, was pretty much akin to rule by military junta). This Constitution includes clergy only in the judicial branch, and even there perhaps not to the exclusion of secular judges. Even if the worst happens, and the judiciary ends up populated exclusively with Sadr clones who willfully ignore all the international human rights norms written into this Constitution in favor of their extremist minority interpretation of Islam, they still would not be able to somehow create from the bench a free-ranging religious police, such as that which exists in Saudi Arabia and other Muslim states, to harass and terrify people in the streets and take up supposed wrongdoers for punishment, nor could they legislate new restrictions, such as not permitting women to leave their homes unaccompanied by a male guardian, as was the case in Afghanistan. A Sadrist judiciary may, in other words, very much want to create all kinds of new "crimes" and execute "apostate" women and religious minorities daily in the public square, but will be powerless to do so without a state apparatus set up to deliver victims to them. It is possible that Iraqis will one day fly in the face of all available public opinion polls about extremist Islam and vote for a legislature and executive that promises to play this bloody role, but in that case something will have gone very badly awry in the whole society. Talebanization cannot somehow arise from "loopholes" in this Constitution, there simply isn't one that would allow clergy under its own power to take over the whole government from the bench.
All of which is not to say that conservative Islamic judges alone can't do women significant harm if they choose; they certainly can. The conservative end of traditional Islam does not deserve to be tarred with the brush of the near-psychotic Taliban, but it disadvantages women plenty nonetheless. The unequal practices of polygamy, in which one man may marry up to four woman, and of divorce (in which a man may divorce his wife unilaterally through a simple oral formulation, whereas a woman must sue in court to divorce her husband, and only then on a few very narrowly defined bases) are comparatively rare but hang like the sword of Damocles over the heads of wives in traditional Muslim societies, and give men tremendous leverage in any marriage, the more so because Islamic law also automatically awards him sole custody of any children (once they reach a certain age, 7 and 9 respectively for boys and girls IIRC) following a divorce, and does not require alimony or any sort of post-divorce support for women of any kind, a significant economic threat in a part of world that does not have many jobs of any kind but particularly not for women, and in which a woman's family may refuse to take her in if her ex-husband is willing to allege that she was unfaithful to him or some such. From this position of power a husband may of course impose any number of restrictions on women in his household regardless of what any civil law says about where they may go and what they may do. There are other ways in which women are disadvantaged in Islamic law, such as a woman being entitled to inherit only a half-share of her parents' property as compared to her brothers, or counting as only half a witness in court, but the hard center of women's oppression in Muslim societies is family law. And some tribal customs regarding marriage, women, and family are even worse, which is why there was such a dispute about whether tribal courts would be formalized in this Constitution. I don't think that it does (reading it over now I'm not positive, see Article 43 2nd quoted below), but in any event, as I noted previously, the Constitution does promise to subject tribal customs to review for conformity with Constitutional principals regarding human rights.
And what are those principles that most affect women?
Article (14): Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, colour, religion, sect, belief, opinion or social or economic status.
In a straightforward reading, this provision would seem to pre-empt the "half-a-witness" rule for women. It also would seem to be intended to identify women as fully included in all of the following rights as articulated, which include:
Article (15): Every individual has the right to life and security and freedom and cannot be deprived of these rights or have them restricted except in accordance to the law and based on a ruling by the appropriate judicial body. [My note: The inclusion of the words "male and female" should not be taken to mean that women are not included in any statements that do not include these words. The locution is very similar to that in the Koran, when Muhammad repetitively says: "O believers, men and women …" and then lists their duties and so forth. Muhammad adopted this formulation after a group of women asked him whether everything he addressed to believers was meant to apply to them, and Muhammad said that indeed it was, and used the "male and female" formulation thereafter for emphasis. It is included here probably for emphasis as well; and of course Article (14) explicitly underlines women's equal status under the law.]
Article (16): Equal opportunity is a right guaranteed to all Iraqis, and the state shall take the necessary steps to achieve this.
Article (17): 1st. Each person has the right to personal privacy as long as it does not violate the rights of others or general morality.
Article (20): Citizens, male and female, have the right to participate in public matters and enjoy political rights, including the right to vote and run as candidates.
Article (22): 1st. Work is a right for all Iraqis in a way that guarantees them a good life.
Article (29): 4th. Violence and abuse in the family, school and society shall be forbidden.
Article (30): 1st. The state guarantees social and health insurance, the basics for a free and honorable life for the individual and the family--especially children and women--and works to protect them from illiteracy, fear and poverty and provides them with housing and the means to rehabilitate and take care of them. This shall be regulated by law.
Article (34): 1st. Education is a main factor for the progress of society and it is a right guaranteed by the state. It is mandatory in the primary school and the state guarantees fighting illiteracy.
2nd. Free education is a right for Iraqis in all its stages.
Article (35): 3rd. Forced labour, slavery and the commerce in slaves is forbidden, as is the trading in women or children or the sex trade.
Article (43): 2nd. The state is keen to advance Iraqi tribes and clans and it cares about their affairs in accordance with religion, law and honourable human values in a way that contributes to a developing society and it forbids tribal customs that run contrary to human rights.
Article (44): All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don't run contrary to the principles and rules of this constitution.
Article (45): Restricting or limiting any of the freedoms and liberties stated in this constitution may only happen by, or according to, law and as long as this restriction or limitation does not undermine the essence of the right or freedom.
As you can see, no position is taken in the Constitution on the crucial matter of family law, save the one provision which seems designed to explicitly invalidate the Islamic justification for wife-beating, (Article 29th, 4th, quoted above). And the guarantees about rights to education and work seem to address the assertions made by some that the inclusion of Islamic law in any capacity in the Constitution will prevent women from working without the permission of their husbands or girls going to school and so forth. We may derive some comfort from the references to international human rights treaties, since Iraq is a signatory to both the Universal Declaration of Human Rights and CEDAW, the latter especially since the rights of women within the family are articulated in some detail (though see my earlier caveat).
Many Muslims, including some clergy and Islamic law scholars, have sought and found amelioration for the unequal status of women in traditional Islam from within Islamic law and tradition (and indeed women's rights within marriage are better in some existing orthodox Islamic schools than others), and are working towards an understanding of Islam that will bring it into conformity with international human rights standards including those touching on the status of women. And some quite powerful clerics such as Sistani seem at least willing to bend Islamic practices to meet secular requirements, and to acknowledge the force of secular law and particularly international human rights standards in deliberating about how Muslims should live in "modernity."
The crucial question is, who will end up on the court? Because obviously an ultra-conservative like Sadr would be willing to overturn all human rights guarantees articulated in this Constitution and by reference to international rights treaties by finding them in violation of Article 2 a (despite the clear intention of Article 2 c, that the rights and freedoms outlined in the Constitution, should limit the authority of Islamic law) without batting an eye. (And apparently conservative clerics regard the rights for women implied in Article 44 threatening enough to their agenda to have attempted, unsuccessfully I am pleased to note, to have it excised). Even less radical clerics might jib at apparently privileging those treaties over Islamic law when it comes down to cases.
The constitution stipulates that members of the Iraqi version of the Supreme Court shall be experts in "Islamic law and law," but it leaves the matter of how they shall be chosen to enabling legislation. It would be a rare individual who could combine true expertise in both fields of law; will there be both secular and Islamic judges on this court? Will there be a certain number of seats allotted for each type, and which gets a majority? Or will each seat be filled separately so that you could possibly end up with a heavy clerical majority? Will judges be selected by the legislature, or the president, or what? Will there be a separate council appointed just for this purpose, which would leave the door open to a self-perpetuating aristocracy far removed from the society's beliefs about Islam (as is the case in Iran for example). And indeed any method of selection which does not somehow guarantee that the court will more or less reflect popular rather than extremist interpretations of Islam by allowing the electorate a pretty good amount of influence over selection will be vulnerable to producing an out-of-step court, possibly in a very conservative direction.
And in all truth while most ordinary Muslims do not believe that their religion does or should contradict human rights principles, the majority in the Arab world at least do not actually want full equality for women and so do not seem to interpret personal and family status in terms of human rights at all (see some pretty typical stats here), and to the extent that this Constitution creates a truly democratic body, this hesitation about women's rights will most likely be reflected in its institutions and law one way or another. Articles 17 and 43 2nd go a little way towards articulating an understanding of private, customary practices as public issues subject to process of law, but the existing cultural understanding of what is a public issue and what is a family issue may prevent them from being interpreted to women's advantage. It may be that many improvements in the status of women will have to be articulated explicitly in legislation rather than left for the courts to find in the Constitution.
Which leads us to the greatest weakness of the Constitution in my view (with respect to women at least): the provision which requires that any new piece of legislation be reviewed first by the judiciary before coming into force. This is in fact one of the methods that guarantees clerical domination via the Revolutionary Council of the legislature in Iran (the other is that body's ability to basically pick Parliamentary candidates) and could become a tremendous bar to all kinds of reform if it is allowed to be dominated by conservative clerics.
So in my view, the door is open both to oppression and to freedom for women in this Constitution; a little wider to the latter if it is taken at face value and in good faith by those who are tasked with enforcing it. But with so little information about how the courts will be constituted it is impossible to predict whether it will be interpreted so.
Hrm, I meant to talk about the relationship of honor killing to all of this too, but it's very complicated, and this is long enough already, and I'm tired … Soon, maybe.
Update: I came back to put in a missing link and correct some typos, so I might as well also point out since I forgot to mention it before that the provision guaranteeing 25% of Parliamentary seats to women is still in place in the proposed Constitution--there had been rumors that this would be eliminated.
Correction: Actually, Article 44 (“All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don't run contrary to the principles and rules of this constitution”) was eliminated in the final draft after all. For some reason I had thought that the only major change to the proposed Constitution was in the rule about how it could be amended, so I was working from my printout of the draft published in August in composing this entry. The full text of the draft that was actually voted on October 15th is here (What now appears as Article 44 is just the provision that was previously Article 45.) Looking over the updated draft, I don’t think anything else I highlighted has been changed Amnesty International’s statement deploring the change is here. (Actually, this is how the change came to my attention; I was looking something else up on their site). Their assessment is basically correct, I think. It wasn’t strongly worded enough in the original in my opinion, but obviously it was strong enough to be threatening to fundies; the deletion is a real loss.Further to my last post, some interesting polling data:
As to the question of Islam being a main source of legislation. 42% support having Islam being the main source of legislation. 24% support having Islam be the only source of legislation. 13% support not having any law which conflicts with Islam. 14% support having Islam being only one of many sources of legislation, not the only one.
As for women’s rights and women’s representation in the legislature. 84% support giving women full rights and benefits as men.
The difficulty being that shari’a law treats men and women quite unequally when it comes to family law, and these inequalities damage the status of women wherever they obtain, whether women have formal political equality in the sense of voting rights and so forth or not. So did Iraqis who preferred a stronger role for Islamic law in the constitution than it currently has simply think they were being asked a question about equal voting rights and the like, or do they really think shari’a law as it stands can be characterized as creating “equality” for women? If the latter they in effect must be thinking of “private” life as separate from “public” life, or buying traditionalist arguments about how Islam already protects the rights of women completely, etc. etc.
References in the draft constitution to international commitments and human rights could be read as a commitment to CEDAW and other human rights conventions, and several provisions of the international rights treaties to which Iraq is a signatory were included nearly verbatim in the draft constitution. However the guidelines on equality in family law found in CEDAW were not.
Inclusion of a specific formulation promising equal rights in family law for women would have gone a long way towards clarifying the issue of women’s promised equality within a legal regime that recognizes Islamic law versus women’s actual inequality in marriage in Islamic law. Though given the apparent contradictions in public opinion as reflected in this poll, perhaps they can’t be clarified except to the detriment of women at this point in time.
Mr. Bell Jar is under a heavy writing deadline, so it looks like I won’t be able to get at a computer to write out all of my thoughts about the draft constitution of Iraq with respect to the status of women anytime soon. Also, I’ve been wanting to see some kind of educated comment on the precise wording of Article 2(1)a in Arabic, since different translations have given it different colorings in English. But I was moved to respond to a comment on a message board stating that Islam is THE source of legislation in the new constitution, that Iraqi women were better off under Saddam, that the constitution does nothing to protect women’s rights, etc. etc., and since it's already all typed up and everything I’ll cut and paste my brief impressions from there and write more later, maybe.
"Islamic law is identified as "a", not "the" source of law in the constitution. You may read why that is an important distinction here.
The full text of Article 2 reads:
1st -- Islam is the official religion of the state and is a basic source of legislation:
(a) No law can be passed that contradicts the undisputed rules of Islam.
(b) No law can be passed that contradicts the principles of democracy.
(c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.
The basic rights and freedoms outlined in the constitution include:
Article (14): Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, color, religion, sect, belief, opinion or social or economic status.
Article (15): Every individual has the right to life and security and freedom and cannot be deprived of these rights or have them restricted except in accordance to the law and based on a ruling by the appropriate judicial body.
Article (16): Equal opportunity is a right guaranteed to all Iraqis, and the state shall take the necessary steps to achieve this.
Article (29):
4th -- Violence and abuse in the family, school and society shall be forbidden.
Article (43):
2nd -- The state is keen to advance Iraqi tribes and clans and it cares about their affairs in accordance with religion, law and honorable human values and in a way that contributes to developing society and it forbids tribal customs that run contrary to human rights.
Honor killing and female genital mutilation are tribal customs that have no basis whatsoever in shari’a law and have always been carried out extrajudicially. Stoning was part of shari’a law, but has been replaced in most Muslim societies (including those which include shari’a law as a source of law at either the constitutional or legislative level, which is nearly all of them except Turkey) with prison terms and fines, along with most other hudud punishments (like cutting the hand off a thief), in the modern era.
Iraq is a signatory to many international human rights documents, including the Universal Declaration of Human Rights and CEDAW; commitment to fulfilling the terms of those agreements is reiterated at various points throughout the full constitution (as is a commitment to ensuring the status and equality of women). It’s true that the amount of weight given to shari’a vs. international human rights standards in judicial review of legislation will be largely determined by the composition of the judiciary (believe it or not, most Islamic scholars do not actually consider the violent oppression of women to be the central demand of their religion, so it does matter who ends up on the court), and the precise method by which the judiciary will be selected has been left to enabling legislation, which makes it hard to predict how easy it would be for more conservative judges to predominate. But the overall thrust of the document itself is very much in the direction of the observation of international human rights standards for women.
If you consider fascism and genocide an appropriate method for improving the status of women, I'm not going to argue that with you. I do note that we wouldn't be having this problem over the matter of women's rights at all if the top-down violent implementation of "modernization," which tended to include some improvements in women's status, had managed to broadly affect social attitudes towards women in Iraq and other Arab fascist secular states. In any event, Saddam decriminalized honor killing in 1999 and was unmistakeably moving in the direction of roll-back on the status of women, as all of the other allegedly secular Arab states were throughout the 90s."
As I said, more later. I do think the explicit intention to subject tribal customs to human rights standards through application of constitutional law is probably the most important provision as a practical matter. We have seen, for example, that ghettoized Muslim communities in European nations with flawless human rights regimes like Great Britain have often managed to nullify the official legal status of girls and women through the threat of honor killing and overwhelming family pressure, and indeed this tends to be the case outside of urban elites throughout the Arab world. The uncertainty about the judiciary is very troubling and may ultimately make a mockery of the term “human rights” in this constitution, but if not this does seem like an opportunity to actually transform the status of women at the social level.
I’m currently reading Radical Islam's Rules
"…the first and second amendments to the constitution were added, showing that the revolution never effectively relegated shari’a to the periphery.
First Amendment: The State Religion of Iran is Islam as in Twelve Shi’ism, and the King must abide by, and promulgate this religion.
Second Amendment: The National Assembly, which has been established with the assistance of the Hidden Imam (may God hasten His arrival), the benevolence of His Royal Highness the King of Kings of Islam (may God make his reign everlasting), the Islamic heirarchy (may God increase their abundance), and masses of the Iranian nation, must not at any time pass any law that would be in contradiction with the holy provisions of Islam of the laws of His Holiness Muhammad, the Best of the Peoples (Peace be upon him). It is evident that to determine whether passed laws are in conflict with Islamic laws or not is the expertise of the prominent clerics (May God render everlasting the joy of their presence). Therefore, it is hereby enjoined that in all times a council will be appointed with no fewer than five members and consisting of pious jurists who are also aware of the necessity of the times. This will be done in the following manner: The prominent clerics, the Proofs of Islam, and the Shi’a Source of Emulation* will submit the names of twenty clerics who possess the aforementioned qualifications to the National Assembly. The members of the National Assembly will, either through reaching a consensus, or by a lottery, appoint five or more of the candidates as members of this council. As members of this council they will review and debate the measures that are discussed in the National Assembly, and they will reject the measures that they find to be in breach of the Islamic laws. … The ruling of this council will be final. This Amendment to the Constitution cannot be altered until the advent of the Hidden Imam (may God hasten His arrival).
The constitutionalists’ modernist tendency stirred also fierce opposition in religious circles … The traditionalist leaders, especially Shaykh Fadlu’llah Nuri, a well-known jurist, called for the creation of a "shari’a-based government." On the other side were the adherents of constitutional rule, including a number of liberal-minded clerics. They avoided confrontation by compromise and agreed to the addition of the first two amendments to the constitution. However, the proponents of constitutional rule resented Shaykh Nuri’s opposition and, once they got the chance, executed him by hanging.
On the surface, it seemed that "shari’a-based government" had emerged victorious. However, its victory was limited to these two amendments. Furthermore, the second amendment proved neither effective nor practical and, over time, was marginalized. In practice, the secularization of the legislative process continued, even to the point that the five jurists of the overseeing council were consulted.
The proconstitution forces were thus able to neutralize the two amendments without repealing them. However, some representatives still had their own personal religious convictions, which thus limited the secularization of legislation. For example, the members of Parliament did not accept the secular legislation on women’s rights. Successive Parliaments following the revolution had been expected to improve women’s conditions but failed to do so. In fact, they enacted laws that explicitly denied suffrage to women. Based on shari’a or, rather, the representatives’ understanding of shari’a, women were lumped together with minors and the mentally ill and were denied the right to vote or be elected to office."
*Translator’s note: Sources of Emulation are Shi’a jurists who achieve high recognition and are accepted as independent interpreters of the shari’a.
Feminism and Islamic Fundamentalism: The Limits of Postmodern Analysis
I’ve mentioned this book before, with a long quote from the introduction. Moghissi is an Iranian ex-pat dismayed by what she sees as Western academic apologism for the misogynist aspects of the wave of Islamization that swept Muslim countries generally in the 80s and 90s, as well as for the low status of women in revolutionary Islamist states themselves (particularly Iran). She challenges the notion that secularist democracy and equalitarian feminism should be seen as culturally inappropriate or for Middle Eastern peoples, and attempts to map out a method for critiqueing the status of women in Muslim nations without playing into Orientalist imagery or anti-Muslim bigotry. Moghissi is especially skeptical of the enthusiasm for Islamic feminism when it is treated not as a necessary resistance strategy for women living in Islamist states, but as the only appropriate mode of feminist consciousness for women in Muslim nations in general. Moghissi herself sees strict limits on how much the status of women can be improved from within Islamic tradition, and so favors secularization as the best method of accomplishing feminist goals. It’s an interesting read and serves as a good introduction to the range of thought among Muslim and ex-Muslim women on feminism and Islam.
